On Point blog, page 55 of 71
TPR – Knowing Admission to Grounds, Ineffective Assistance
State v. Kenneth E., 2010AP1520, District 1, 12/7/10
court of appeals decision (1-judge, not for publication); for Kenneth E.: Mary D. Scholle, SPD, Milwaukee Appellate
(The Court’s Case Access site has posted Kenneth E.’s principal and reply briefs. This is atypical; the court’s normal practice is not to post briefs, because of the confidentiality that attends TPRs. Though seemingly not barred by statute or rule, links to the briefs won’t be provided here in deference to the court’s past practice,
Ineffective Assistance: Inconsistent Defenses – “McMorris” Evidence – Prejudice; Appellate Procedure: Candor – Briefs, Record References
State v. Dekoria Marks, 2010 WI App 172 (recommended for publication); for Marks: Joel A. Mogren; Marks BiC; State Resp.; Reply
Ineffective Assistance – Inconsistent Defenses
Counsel’s choice to pursue potentially inconsistent defenses (self-defense; no involvement) was, in light of the “not uncommon practice of lawyers to argue inconsistent theories,” within the wide range of professionally competence assistance.
¶15 First,
Appellate Procedure – Sanctions and Inadequate Argumentation
State v. Michael E. Ballenger, 2010AP664-CR, District 3, 11/16/10
court of appeals decision (1-judge, not for publication); for Ballenger: Ryan D. Lister; Ballenger BiC; State’s Resp.
Appellate Procedure – Sanction
Ballenger’s brief’s appendix does not include any portion of the suppression motion hearing transcript—neither deputy Campbell’s testimony nor the court’s factual findings or reasoning for denying the motion. Yet, as required by rule,
Guilty Plea – Withdrawal – Presentence, Undisclosed Exculpatory Evidence, Waiver Rule; Ineffective Assistance of Counsel; Sentencing
State v. Morris L. Harris, 2009AP2759-CR, District 1, 11/2/10
court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply
Guilty Plea – Withdrawal – Presentence
The trial court properly applied the “fair and just reason” standard to Harris’s presentencing motion to withdraw guilty plea, ¶¶5-9.
The particular grounds asserted – no factual basis for plea;
Turner v. Price, USSC No. 10-10, cert granted 11/1/10
Decision below (S.C. supreme court)
Questions Presented (courtesy, Scotusblog):
1) Whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration; and 2) whether the Court has jurisdiction to review the decision of the South Carolina Supreme Court.
Turner got 12 months in jail for civil contempt for willful failure to pay child support (remedial contempt,
TPR – Right to Counsel – Violation, Structural Error
State v. Darrell K., 2010AP1910, District 1, 10/19/10
court of appeals decision (1-judge, not for publication); for Darrell K.: Jereny C. Perri, SPD, Milwaukee
Darrell’s right to counsel was violated when the trial court granted counsel’s motion to withdraw then found Darrell in default as to grounds while he was unrepresented. State v. Shirley E., 2006 WI 129, followed.
¶10 The Wisconsin Supreme Court ruled that the trial court erred in dismissing Shirley’s attorney and in finding Shirley in default when she was unrepresented throughout the hearings.
Herbert Johnson, Sr. v. Thurmer, 7th Cir No. 07-2628, 10/18/10
7th circuit court of appeals decision, on habeas review of summary order of Wisconsin court of appeals
Habeas – Procedural Default & No-Merit Report
Johnson’s failure to assert an ineffective assistance of (trial) counsel claim in response to his appellate attorney’s no-merit report did not procedurally default that claim for purposes of subsequent collateral attack. The court follows Page v. Frank, 343 F.3d 901 (7th Cir.
Motion to withdraw Plea, Pre-Sentence; Motion to withdraw Plea – Ineffective Assistance
State v. John M. Anthony, 2009AP2171-CR, District 1, 10/13/10
court of appeals decision (3-judge, not recommended for publication); pro se; Resp. Br.
Motion to withdraw Plea, Pre-Sentence
Based on trial court findings that Anthony decision to plead no contest was based on his attorney’s informed assessment that he was likely to be found guilty if he went to trial, the court of appeals rejects his claim that he was coerced into pleading by counsel’s lack of preparation and holds instead that he failed to establish a “fair and just”
Jury Instructions; Ineffective Assistance; Record on Appeal; Self-Defense
State v. Morris L. Harris, 2009AP2833-CR, District 1, 10/13/10
court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply
Lesser-Included Instruction – Battery
Harris not entitled to instruction on simple battery as lesser included of substantial battery; the medical evidence established without contradiction that the victim suffered a fractured rib, therefore no reasonable jury could have acquitted him of the greater offense,
State v. Shantell T. Harbor, 2009AP1252-CR, Wis SCt rev granted 9/22/10
decision below: unpublished; for Harbor: Joseph E. Redding; court of appeals briefs: BiC; Resp.; Reply
Issues (from Table of Pending Cases):
Whether a defendant presented a new factor entitling sentence modification (See State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).
Whether a defendant demonstrated ineffective assistance of counsel under Strickland v.